Ex Parte Cathier et al

Patent Trial and Appeal Board

Feb 28, 2019

14442427 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/442,427 05/13/2015 Pascal Yves Francois Cathier I
24737 7590 03/04/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
2012P01085WOUS 3689
EXAMINER
YANG, YI-SHAN
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
03/04/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PASCAL YVES FRANCOIS CA THIER,
OLIVIER PIERRE NEMPONT, and RAOUL FLORENT 1
Appeal2018-004545
Application 14/442,427
Technology Center 3700
Before: JILL D. HILL, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final
decision rejecting claims 1, 2, 4--9, and 12-21.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Koninklijke Philips N.V. ("Appellant") is the applicant as provided in 37
C.F .R. § 1.46 and is identified as the real party in interest. Appeal Br. 2.
2 Claims 3, 10, and 11 are canceled. Final Act. 2.
Appeal2018-004545
Application 14/442,427
BACKGROUND
Independent claims 1, 8, and 17 are pending. Independent claim 1,
reproduced below, illustrates the claimed subject matter:
1. A method for ultrasound image acquisition and tracking
an object of interest in ultrasound image information, comprising
acts of:
receiving X-ray image information and the ultrasound
image information;
detecting an object of interest in the X-ray image
information; and
steering a first ultrasound image acquisition plane of a
two-dimensional ultrasound image acquisition device such that
the object of interest, the X-ray source, the ultrasound source and
the projection of the object of interest in the X-ray image
information are within the first ultrasound image acquisition
plane; and
acquiring a two-dimensional ultrasound image along the
first ultrasound image acquisition plane that includes the object
of interest, the X-ray source, the ultrasound source and the
projection of the object of interest in the X-ray image
information.
REJECTIONS 3
I. Claims 1, 2, 4---6, 8, 9, 12-15, and 17-20 stand rejected under
35 U.S.C. § I03(a) as unpatentable over Gilboa (US 2003/0074011 Al, pub.
Apr. 17, 2003) and Byrd (US 7,314,446 B2, iss. Jan. 1, 2008). Final Act. 4.
II. Claims 7, 16, and 21 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Gilboa, Byrd, and Guendel (US 6,529,766 Bl, iss. Mar. 4,
2003). Final Act. 12.
3 The Examiner withdrew a rejection of claims 17-21 under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. See Final Act. 3; see also Advisory Act. 2 (mailed June 27,
2017).
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Application 14/442,427
ANALYSIS
Rejection I: Obviousness Based on Gilboa and Byrd
For each of independent claims 1, 8, and 17, the Examiner finds that
Gilboa discloses receiving X-ray and ultrasound image information, and
detecting an object of interest in the X-ray image information, but does not
explicitly discloses steering a first ultrasound image acquisition plane of an
ultrasound imaging device so that 1) the object of interest, 2) the X-ray
source, 3) the ultrasound source, and 4) the projection of the object of
interest in the X-ray image information are within the first ultrasound image
acquisition plane. Final Act. 4--5. Specifically, the Examiner finds that
Gilboa does not teach how to steer the ultrasound device "to cover the 4
components listed above in a single image plane." We note, however, that
Gilboa orients an ultrasound image plane and a fluoroscopy (i.e., X-ray)
image plane (see Gilboa ,r 236), and the planes intersect along a line that
includes each of the four components (see Gilboa ,r,r 24, 155, and 156). Id.
at 4. Thus, it is the explicit disclosure of steering an ultrasound image plane
that is missing from Byrd. The Examiner finds that Byrd explicitly teaches
steering a catheter ultrasound beam in an imaging plane. Id. at 5 ( citing
Byrd, 3: 13-19). The Examiner concludes that it would have been obvious to
substitute Byrd's steerable ultrasound catheter for the ultrasound catheter of
Gilboa to predictably "provide a medical imaging utility that 'improves the
diagnosis and treatment of many medical conditions, and provides
physicians with methods and apparatuses to see the actual movement of an
object of interest for better diagnosis conditions." Id. ( emphasis removed)
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Application 14/442,427
Claims 1, 2, 4-6, 8, 9, 12-15, and 17-20
Appellant argues claims 1, 2, 4--6, 8, 9, 12-15, and 17-20 as a group.
Appeal Br. 8-17. We select independent claim 1 as representative. 3 7
C.F.R. § 4I.37(c)(l)(iv). Claims 2, 4--6, 8, 9, 12-15, and 17-20 stand or fall
with claim 1.
Appellant argues that Byrd's disclosure of steering an ultrasound
beam in two dimensions by about 180° does not render obvious the claimed
steering, which requires that "all 4 components listed above would be
included in an ultrasound plane of the[] steered ultrasound beam." Appeal
Br. 11. According to Appellant,
Id.
just because an ultrasound beam is steered in two dimensions
by about 180° does not make it obvious to one skilled in the art
to specifically steer an ultrasound beam such that all 4
components listed above would be included in an ultrasound
plane of the electronically steered ultrasound beam. Despite
covering a large number of planes by steering an ultrasound
beam by 180°, such a large number of planes may still not
include the particular plane that includes all 4 components
listed above.
According to Appellant, if their X-ray source 30 is moved, their
ultrasound plane 42 will no longer be "properly oriented and will not
include" the four claimed components listed above. Appeal Br. 11-12.
The Examiner responds that, based on Gilboa's system, "the object of
interest would always fall within the line connecting the x-ray source and the
detector." Ans. 16. The Examiner states that "as long as the ultrasound
beam is capable of steering or being steered to face this line, the 4 items
would co-present in a plane and such a plane could be labeled as an
acquisition plane." Id. The Examiner concludes that the combined
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Application 14/442,427
teachings of Gilboa and Byrd result in the four components being "included
in the scanning field of view and consequently the images thereof would be
acquired." Ans. 17.
Appellant replies that the Examiner's assertion that "Byrd is 'capable'
of the particular recited steering," is insufficient because the claims require
"a particular steering, or a particular processor configured to cause
performance of the particular steering, which is nowhere disclosed or
suggested in Byrd and Gilboa, alone or in combination." Reply Br. 4.
We are not persuaded that the Examiner's findings are in error. The
claims require steering a first ultrasound image acquisition plane so that four
components, namely, 1) an object of interest, 2) an X-ray source, 3) an
ultrasound source and 4) the projection of the object of interest are within
the plane. As the Examiner correctly notes, components 1), 2), and 4) are
always aligned. See Ans. 16 ("the object of interest would always[ s] fall
within the line connecting the x-ray source and the detector (line (2)--(1 )--
( 4) as illustrated in both FIG. I and FIG.2) no matter how the x-ray source
moves."). The Examiner then notes that, as long as the ultrasound beam of
the combination of Gilboa and Byrd "is capable of steering or being steered
to face this line, the 4 items would co-present in a plane and such a plane
could be labeled as an acqusition plane." Id.
Appellant's assertion that Byrd's capability of steering is insufficient
because a particular steering is required, is not persuasive. The Examiner is
only relying on Byrd to steer image planes, because Gilboa discloses the
object of interest, X-ray source, ultrasound source, and projection of the
object of interest being within a single plane. Specifically, Gilboa discloses
that "the image obtained from the additional imaging instrument ( e.g.,
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Application 14/442,427
ultrasound) is projected on a plane with desired relativity to that of the
fluoroscope ( e.g., identical, parallel, orthogonal or otherwise oriented
planes)." Gilboa ,r 236; see also Final Act. 4. Thus, Gilboa already orients
the ultrasound plane with the plane of the fluoroscope (X-ray source), which
includes the X-ray source, the object of interest and the projection of the
object of interest, i.e., components 1 ), 2), and 4), and the Examiner merely
uses Byrd's steering to conduct the orientation (i.e., to steer the ultrasound
image acquisition plane so that the ultrasound source lies within the same
plane as the object of interest, X-ray source, and projection of the object of
interest).
In addition, Gilboa's oriented planes are consistent with those in
Appellant's Specification, which discloses that X-ray source 30 generates X-
radiation 31 directed toward object of interest 36, which "generates a
projection 38 on the two-dimensional X-ray detector 32," and establishes "a
vector or line 48 between the X-ray source 30 and the projection 38 of the
object of interest 36 on X-ray detector 32," and includes object of interest
36. Spec. 6:7-16; cf Gilboa ,r,r 24, 25. Appellants' Specification also
discloses that "first ultrasound plane 42 is ... established by ... points in
space of the ultrasound transducer 34, the X-ray source 30 and the projection
38 of the object of interest 36," and that first ultrasound plane 42 is based on
"a known spatial relationship between the X-ray image information 40 and
the ultrasound image information 42, which may be performed by a
registration operation of the C-arm acquisition geometry information and the
ultrasound image information for obtaining a spatial relationship between
said two image information." Spec. 6:22-30; cf Gilboa ,r,r 155, 156,236.
Given that Gilboa already orients X-ray image information with ultrasound
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Application 14/442,427
image information based on a desired relativity, Appellant does not explain
persuasively why orientation using Byrd's steering is not performance of the
particular steering required by claim 1.
Appellant also argues that Byrd's disclosure of the "general concept
of 180° beam steering, is analog[ ous] to disclosing a large genus in an
attempt to show that particular species are obvious." Appeal Br. 13; see also
Reply Br. 5---6. According to Appellant, there is no reason, "absent the
benefit of impermissible hindsight derived from the instant Application, for
one skilled in the art to suggest steering to such a specific ultrasound image
acquisition plane that includes the recited 4 components." Id. at 14.
Appellant's arguments are not persuasive because Gilboa orients an
ultrasound image plane and a fluoroscopy (i.e., X-ray) image plane (see
Gilboa ,r 236), and the planes include each of the four components (see
Gilboa ,r,r 24, 155 and 156), and Byrd discloses steering an ultrasound beam
in an imaging plane (Byrd, 3: 13-15). Appellant does not provide persuasive
arguments that Byrd's steering is not a known method that a skilled artisan
would appreciate would be employed to orient Gilboa's ultrasound image
plane. Moreover, the Examiner's reasoning is supported by rational
underpinnings in that the Examiner's proposed substitution "continues to
provide a medical imaging utility that 'improves the diagnosis and treatment
of many medical conditions, and provides physicians with methods and
apparatuses to see the actual movement of an object of interest for better
diagnosis conditions,"' which comes directly from Byrd. See Final Act. 5
( citing Byrd, 1 :29-34) ( emphasis removed). Because the Examiner provides
a reason with a rational basis for combining Gilboa with Byrd, we are not
persuaded that the rejection is based on impermissible hindsight. See In re
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Application 14/442,427
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) ("[a]ny judgment on
obviousness is in a sense necessarily a reconstruction based on hindsight
reasoning, but so long as it takes into account only knowledge which was
within the level of ordinary skill in the art at the time the claimed invention
was made and does not include knowledge gleaned only from applicant's
disclosure, such a reconstruction is proper."); In re Cree, 818 F.3d 694, 702,
n.3 (Fed. Cir. 2016).
Appellant also argues that, even if Byrd's ultrasound steering would
have been obvious, Gilboa and Byrd, alone or in combination, do not
suggest "to acquire a two-dimensional ultrasound image along the
ultrasound image acquisition plane that includes the object of interest, the X-
ray source, the ultrasound source and the projection of the object of interest
in the X-ray image information." Appeal Br. 14; see also Reply Br. 6.
The Examiner responds that "all the objects in the scanning field of
view would be captured, and ... acquired." Ans. 15.
Appellant's arguments are not persuasive because Gilboa discloses
that "[ o ]ne ordinarily skilled in the art would know how to operatively
assemble a frame grabber and image processing hardware/software in order
to reduce to practice this embodiment of the present invention." Gilboa
,r 236; see also Final Act. 4. That is, Gilboa explicitly states that one of
ordinary skill would know how to capture (acquire) the images. In addition,
Gilboa discloses that "the present invention can be used to record and
display in context of an image the location of the at least one point-of-
interest in a body." Gilboa ,r 175. Because Gilboa obtains (i.e., acquires)
the image that includes each of the 4 recited components as well as records
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Application 14/442,427
and displays the image, Appellant's arguments that Gilboa does not acquire
an image are not persuasive.
For the reasons set forth above, we are not persuaded that the
Examiner's findings or conclusions are in error. We sustain the rejection of
claim 1. Claims 2, 4--6, 8, 9, 12-15, and 17-20 fall with claim 1.
Rejection II: Obviousness of Claims 7, 16, and 21
Appellant makes no argument that claims 7, 16, or 21 would be
patentable over the applied references, if claim 1 is not patentable over
Gilboa and Byrd. See Appeal Br. 8. For the reasons set forth above
regarding Rejection I, we sustain Rejection II.
DECISION
We AFFIRM the rejection of claims 1, 2, 4--6, 8, 9, 12-15, and 17-20
under 35 U.S.C. § 103(a) as unpatentable over Gilboa and Byrd.
We AFFIRM the rejection of claims 7, 16 and 21 under 35 U.S.C.
§ 103(a) as unpatentable over Gilboa, Byrd, and Guendel.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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